Sunday, August 20, 2006

Week in Review Vol. I No. 1: 2 New Blawgs; The Upcoming SCOTUS Calendar; JUST US Opposes Habeas For Innocent Man; & NY's New Court of Appeals Judge

All week I read a thousand web posts, articles, and such, wishing I had the time to blog them all. Of course I could never do that and still practice law and spend time with my family. I decided to try to put together a post on a weekly basis that let's me bring the posts to your attention and throw in my two cents where I have the change in my pocket. (Tribute to the NY Times Sunday edition whose Week in Review Section has been my favorite read for over 35 years.) I will be doing the same at our sister blog That Lawyer Dude. The difference will be the items chosen in each post will usually be a little different. Thus without further adieu here is Volume I No.1:

A. Two New Legal Blogs of Note

I want to bring to your attention two new legal blogs (or Blawgs as they are often referred to.)

The first is from down Texas way. It is aptly named The Texas Law The writer Bryan Owens is a Texas lawyer with a New England upbringing and a degree from Harvard University undergrad and Loyola Law.

I like the blog. Especially the dual civil and criminal tracks it takes. If you are interested in reading a new voice in the Blogosphere or just want to see what's happening down in the Pecos, check out The Texas Law Blog.

A new and interesting niche criminal blog is on the scene. The Environmental Crimes blog covers crimes against the environment. It is written by Walter James a former BIG LAW Partner who has decided to chuck the baggage and deliver service to clients from the point of view of the solo/small firm lawyer.
Here is Walter's take on the POV of his blog:

"This blog will explore, on different levels, environmental crimes - how they are investigated, charged, tried and appealed. We will explore what the criminal mens rea is and how it evolved. We will explore the responsible corporate officer doctrine and the open fields doctrine. We will discuss how to prepare for the environmental criminal inspection and the service of a search warrant. And we will explore other avenues of what goes on in an environmental criminal investigation."

It has been in business a couple of weeks but from what I see it looks like a well researched and well written blog. I welcome Walter to the Crim blog part of the Blogoshpere.

B. The Upcoming SCOTUS October Term

Howard Bashman (author of the authoritative How Appealing Blog, as well as a writer for Law.Com, and a practicing appellate lawyer in Philly)has this column about the upcoming SCOTUS October term argumentss at

Howard notes that the term has a number of criminal law cases on the docket.

Of one set of appeals to be heard during the first week of the new term, Mr. Bashman writes:

"The question presented in the consolidated cases of Lopez v. Gonzales and Toledo-Flores v. United States is whether an alien who is convicted of a drug crime that is a felony under state law, and has been sentenced under state law to more than one year of imprisonment, has committed an "aggravated felony" for purposes of federal immigration law even though the same offense is generally punishable under federal law only as a misdemeanor."

October also features a death penalty appeal from California and a sentencing case that asks the question: "(Does) California's Determinate Sentencing Law violate the 6th and 14th Amendments to the U.S. Constitution by permitting California state court judges at sentencing, to impose enhanced sentenced based on their determination of facts neither found by the jury, nor admitted by the defendant?"

The whole column is an interesting read. I would note that keeping an eye on the SCOTUS calendar is a good idea. Especially in the sentencing area as the court tries to help the circuits an district courts make sense of the Booker/FanFan decision.

C. US Opposes Habeas Relief For An Innocent Man: or The Third Biggest Lie In The World, "I'm From The Government, I Am Here To Do Justice."

Duarnis Saul Perez gets deported. Why? It really doesn't matter. Why not? Because he is an American citizen and cannot be deported. He comes back to his homeland the good ole' US of A. He gets arrested for illegally reentering the country. He sits in jail for 57 months convicted of a crime HE CANNOT COMMIT. As he is about to be banished a second time, ICE (formally INS or Immigration) realizes the error.

Perez files a Writ of Habeas Corpus to expunge his record because HE DIDN'T COMMIT A CRIME!!!!!! His country's response after putting him out and jailing him for crimes he couldn't commit?

Of course, they oppose his request. What is up with that? How about we say "Sorry son. Maybe we screwed up?" "We didn't mean it?" "Here's a couple of years wages to help you get on your feet after five years of wrongful prosecution?" (After all we can afford that, look at the size of the handouts we give Haliburton.)

Karl Keys has more overhere at Capital Defense Weekly. There is a link to the NY Law Journal article but you may need a subscription. I hope someone is bringing a 42 USC Section 1983 action on Perez's behalf. Sometimes JUST US disgusts me.

D. New York Court Of Appeals Slated To Get A New Justice. Black Voters Lose only Court Of Appeals Voice, As Pataki Rejects Bundy-Smith's Attempt To Be Reappointed.

Amid a sure NYS Senate Vote to confirm his appointee, New York Governor George Pataki has nominated upstate Appellate Division Presiding Judge Eugene F. Pigott Jr to take the place of George Bundy Smith the courts only sitting black judge. Smith has been a friend to the defense bar, but I wouldn't grieve his loss at the expense of Pigott just yet. Pigott is a former civil plaintiff's guy and a former President of the Erie County Legal Aid Society. He has a very conservative/libertarian justice sitting right next to him in Judge Robert Smith who could pull him toward the defense on libertarian and constitutional issues.

If Elliot Spitzer (who right now seems destined to become our next Governor...can anyone even name who his Republican opponent is?) nominates the usual suspects to replace Chief Judge Kaye and the others on the more liberal end of the court, we could see a lot of 5-2 and 4-3 decisions in favor of liberty.

And now, an extra article for those that hung on until the end:

E. Now Just Talking About Government Secrets Is A Crime.

This Washington Post article is chilling. There has never been a "Government's Secrets Act" in US history, however our friends at Justice got a court to recognize one, even though Congress never passed one. (Remind me again... Bush is the one that wanted non-activist courts right?? How hypocritical.)

Some judge in the US District Court in Virginia (otherwise known as the Bush Rubber Stamp Court) agreed with the administration that it was a crime to have government "secrets" (no definition offered) and talk about them with others even if there was no intent to commit espionage.

Now while that may make some sense at first blush, it seems that it would mean no more reporting such as that done on the NSA Domestic Spying Case and could one even testify about it before the Congress? What about if a piece of information came to a reporter inadvertently, that showed the government was torturing American citizens??

There is a reason no court has ever held this law to read this way, even though it has been on the books since before 1920. There is a reason Congress has never passed a Government's Secrets act. It is patently unconstitutional. It is a complete violation of the First Amendment (you remember..."Congress shall enact no law...Abridging the freedom of speech, or of the press...")

In this time of abject government fear of terror, they let the terrorists win. Americans don't want a leader who fears our opponents so much that he would put our freedoms asunder. We want a leader who will cherish our freedoms and protect our freedoms in the face of attack by others. We would die for our freedom. Not our standard of life, our way of life. I know I would be willing to die for those principals.

I wonder if America will ever be America again.

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